Doctor Plans To Appeal Ruling That Said Complaining About His Bedside Manner Was Not Defamation

from the this-isn't-helping-your-cause dept

We recently wrote about a court ruling against a doctor who tried to sue someone who wrote some bad reviews about the doctor's bedside manner online. Thankfully, the court ruled that those reviews were not defamatory. The court noted that the guy posting the material was clearly not happy with Dr. David McKee, but that:

"In modern society, there needs to be some give and take, some ability for parties to air their differences.... Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this sort any more or less defamatory."

Now, a smart doctor might take that lesson and move forward, and perhaps look into ways to respond reasonably to complaints. Or, there's Dr. David McKee, who has announced that he has "no choice" but to appeal the ruling. That's actually wrong. He has plenty of choices. For example, he could not appeal the ruling.

Amusingly, part of the reason that Dr. McKee is apparently filing the appeal is because he claims that the same guy started writing a bunch more critical messages about him online after the ruling came out. However, the guy, Dennis Laurion, insists that he hasn't posted anything since the lawsuit began, and suggests that perhaps all of those anti-McKee posts came about because of the negative publicity associated with the lawsuit. Specifically, he notes that "there was an influx of Internet chatter about McKee after a link to a story about McKee appeared on the high-traffic website reddit.com." So what next? Will Dr. McKee try to sue a bunch of Reddit posters too? I'm sure that will go over well...

One other choice...

...Improve his bedside manner. There have been numerous studies showing a strong link between negative bedside manner and malpractice lawsuits. Basically, the better your bedside manner and the more your patients like you personally, the less likely you are to be sued for malpractice, even when you screw up.

Re: what exactly is defamation?

Defamation is arbitrary in one sense: it's a fact-based determination often left for a jury.

As to what is defamation; opinion is not. One way to look at defamation is that it's an intentional untruthful statement about another that harms that persons reputation.

Opinions, however, are not defamation because they are not fact — they cannot be said to be truthful or untruthful.

Think of this fact scenario:

Someone posts on a doctor review site that a doctor's bedside manner was not great.

"This doctor is cold and I felt I never connected with him. He also left me sitting in the room waiting for hours each time I went. He never talked to me when he examined me. When he did talk, he was annoying."

Which parts of the statement are facts and which opinion? Two facts stand out: leaving the person sitting in the room for hours and never talking. You could prove or disprove those facts. They could be said to be truthful or non-turthful.

Compare with "the doctor is cold" and "I never connected with him." Those are opinions. You can't really prove those in court; they're based on the patient's feelings. Similarly, the belief the doctor was annoying is an opinion.

Opinions and facts can be wrapped together, however. Take, for example, "he never talked to me." You might argue that it's clearly an exaggeration and indicates the patient's belief (and therefore opinion) that the doctor didn't make and effort to communicate well. You might also argue that it says what it says: he literally never talked to the patient.

When facts and opinions get intertwined, it creates a fact-based question the court must consider. Sometimes, though, opinions are just opinions and facts are just facts.

Hope that sheds some light.

This doctor (and his lawyer) are likely going to lose. U.S. defamation cases can be quite difficult to win, and courts defer intuitively to the First Amendment quite a bit.

Re: what exactly is defamation?

> Can anyone explain the US defamation laws?
> It seems fairly arbitrary, what is the difference
> between a bad review and defamation?

Defamation starts out life, in this situation, as a bad review. If the subject of the bad review is not merely incompetent, but also a litigious nut willing to spend money to sue everyone, then the bad review grows up and becomes defamation.

In short: the difference is whether one can afford the money and vast waste of time of a lawyer.

Did you see the Google News search on Ratemds?

When I followed the link to ratemds, I notice a box in the middle with a current "Google News" results for Dr. David Mckee ... which is, of course, an article about him vowing to appeal the ruling, LOL

I ran into this same issue. I was referred to a *surgeon* by my family doctor. Not just a normal doc now, a surgeon....

I checked him out on-line. I read some posts that bashed his bedside manner and concern for the patient. But since my family doctor recommended him, and I trust my family doctor - I ignored the online information and went to make this 'call' myself.

I found the online comments were totally wrong. IF this doctor were to start suing, I may reconsider using him - because then it starts to look political or like he's covering something up. So I'll be using this doctor for surgery, regardless of what it says online.

Don't believe everything you read on the web. But when people start to sue - it does make you wonder...

Re:

Finding a doctor that you like is a very personal thing, which some people do not realize. There are doctors that I will have nothing to do. They're great doctors. They have patients who truly love them and what they do. On the other hand, my personality clashes with his, and we do not ever see eye to eye. I think he's rude, cold and argumentative. it's all just personal opinions one way or the other.

Now, if the doctor is a total screw-up, doesn't know shit, and acts like he's the best thing to come out of the medical profession, well... doubt anyone's going to like him, anyways.

Re: Re:

I have to second this point. My significant other has numerous serious medical issues. Her doctor has been nothing less than excellent with her care. He has gone above and beyond simple care and attention to health. He has given her his home phone number so she can call him when we have to take a trip to the emergency room (happens usually at least twice a month).

The same doctor was on duty at the ER when I came in with a case of acute pancreatitis. I ended up leaving that hospital and going to another(I even removed my own IV lines and walked out when they told me I couldn't check myself out). I did not get along with him at all as a patient. I know he is an excellent doctor, but his bedside manner really pissed me off.

This man is probably the best doctor I have ever known, and is a pleasant person for me to deal with in a non-doctor/patient relationship. He and I butted heads about my care, and he is not my doctor now. If I gave a review, it might very well sound negative to another even though he is an excellent doctor.

The hearing is scheduled.

The Minnesota Court Of Appeals has scheduled David McKee MD v Dennis Laurion for a hearing by a panel of three judges. The oral hearing will be November 10, 2011, at 10:00 AM in the Sixth District Court House of Duluth.

So what next? Will Dr. McKee try to sue a bunch of Reddit posters too?

Before his ratings is a field called General Information. On 9/28/11 it says "Personal Statement: This site, and similar sites are an unreliable way of assessing physicians. They are easily abused and virtually no surveillance is undertaken by the site to prevent this. My ratings and comments have been contaminated by a very malicious person, Dennis Laurion and friends of his who have made well over 100 negative postings on Vitals and Health Grades. Mr. Laurion's entries have been dishonest and those of his acquaintances pure fiction. Vitals should not allow anonymous comments and should make it easier for physicians to remove blatantly false or fictional ones. Health Grades was very responsive and quickly identified the 60+ bogus entries and removed them. Vitals has been remarkably difficult to work with. Even after acknowledging the fact that most or all of the negative ratings were bogus it took week to get them to do even a partial retraction. They have agreed to provide IP addresses for suspicious entries; that is something I suppose."

Supreme Court heard McKee vs Laurion

According to "The Legal Infrastructure of Business," the September hearing was held. The article tells the review that caused the suit.

From "The Legal Infrastructure of Business"

In April 2010, Dennis Laurion accompanied his parents to a neurologist appointment with Dr. David McKee after Mr. Laurion’s father had been hospitalized for a stroke. After a 10-15 minute visit with Dr. McKee, Mr. Laurion returned home, upset with the visit and posted the following review online:

My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. David C. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his family, Dr. McKee said, “When you weren't in ICU, I had to spend time finding out if you transferred or died.” When we gaped at him, he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” My father mentioned that he'd been seen by a physical therapist and speech therapist for evaluation. Dr. McKee said, “Therapists? You don't need therapy.” He pulled my father to a sitting position and asked him to get out of bed and walk. When my father said his gown was just hanging from his neck without a back, Dr. McKee said, “That doesn't matter.” My wife said, “It matters to us; let us go into the hall.” Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or me. When I mentioned Dr. McKee's name to a friend who is a nurse, she said, “Dr. McKee is a real tool!”

The facts in these types of cases typically fall into the “my word against theirs” category. Below I discuss some of the arguments in the case to highlight how granular the distinction can be between what is a fact versus opinion.

1. “I had to spend time finding out if you transferred or died” – Dr. McKee maintains that he made a lighthearted comment to the effect of I had looked for him up in the intensive care unit and was glad to find that, when he wasn't there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you're someplace like this or you leave because you've died. While the comments are substantially similar, Dr. McKee maintains that the “sting” is very different. In Mr. Laurion’s version, Dr. McKee seems to blame the patient and joke about their death, but in his statement, expresses happiness for the patients improved condition. Therefore, if a jury believes Dr. McKee’s recollection, then the statements by Mr. Laurion are not substantially accurate.

2. Mr. Laurion asserts that in response to the patient’s gown not covering his backside, Dr. McKee said, “That doesn’t matter” – Dr. McKee maintains that he said something to the effect of “I thought it would be fine” or “It looks like it's okay” to indicate that the gown was sufficiently tied. While these statements are similar, to a listener they can come across very different with the first implying that a patient’s concern doesn’t matter, while the second can be interpreted as reassuring a patient. Again, the distinction between these comments has large implications on whether Mr. Laurion’s statements are substantially accurate or not.

3. “A friend who is a nurse, she said, “Dr. McKee is a real tool!” – The court is not evaluating whether what the nurse said is fact or not, the court is evaluating whether there is in fact a nurse that made the statement or not.

High court rules online post didn't defame doctor

Dennis Laurion fired off his screed on a few rate-your-doctor websites in April 2010, along with some letters about what he saw as poor bedside manner by his father's neurologist. He expected at most what he calls a "non-apology apology."

"I really thought I'd receive something within a few days along the lines of 'I'm sorry you thought I was rude, that was not my intent' and that would be the end of it," the 66-year-old Duluth retiree said. "I certainly did not expect to be sued."

He was. Dr. David McKee's defamation lawsuit was the beginning of a four-year legal battle that ended Wednesday when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor's reputation.

The unanimous ruling reverses an earlier Appeals Court decision and brings to an end the closely watched case that brought to the forefront a First Amendment debate over the limits of free speech online.

It's a frustrating end for McKee, 51, who said he's spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him -- likely from people who never met him. He hasn't ruled out a second lawsuit stemming from those posts.

"The financial costs are significant, but money is money and five years from now I won't notice the money I spent on this," he said. "It's been the harm to my reputation through the repeated publicity and the stress."

He said he offered to settle the case at no cost after the Supreme Court hearing. Laurion contends they couldn't agree on the terms of the settlement, and said he not only deleted his initial postings after he was initially served, but had nothing to do with subsequent online statements about McKee.

The lawsuit followed the hospitalization of Laurion's father, Kenneth, for a hemorrhagic stroke at St. Luke's Hospital in Duluth. Laurion, his mother and his wife were also in the room when McKee examined the father and made the statements that Laurion interpreted as rude. After his father was discharged, he wrote the reviews and sent the letters.

On at least two sites, Laurion wrote that McKee said that "44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option," and that "It doesn't matter that the patient's gown did not cover his backside."

Laurion also wrote: "When I mentioned Dr. McKee's name to a friend who is a nurse, she said, 'Dr. McKee is a real tool!'"

McKee sued after he learned of the postings from another patient. A St. Louis County judge dismissed the lawsuit, saying Laurion's statements were either protected opinion, substantially true or too vague to convey a defamatory meaning. The Appeals Court reversed that ruling regarding six of Laurion's statements, reasoning that they were factual assertions and not opinions, that they harmed McKee's reputation and that they could be proven as false.

The Supreme Court disagreed. Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted. Page added that the "tool" statements also didn't pass the test of defaming McKee's character. He dismissed an argument by McKee's attorney, Marshall Tanick, that the "tool" comment was fabricated by Laurion and that the nurse never existed. Whether it was fabricated or not was irrelevant, the court ruled. "Referring to someone as 'a real tool' falls into the category of pure opinion because the term 'real tool' cannot be reasonably interpreted as stating a fact and it cannot be proven true or false," Page wrote.

Tanick said the ruling could present a slippery slope.

"This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse," he said.

Jane Kirtley disagreed. The professor of media ethics and law at the University of Minnesota School of Journalism said the ruling stems from "an elementary principle of libel law. I understand the rhetoric, but this is not a blank check for people to make false factual statements," she said. "Rather, it's an endorsement that statements of opinion are protected under the First Amendment."

Laurion's attorney, John D. Kelly, said the fact that Laurion's speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. "It's almost as if things were said around the water cooler or perhaps posted in a letter to the editor," he said. "I think the principles they worked with are applicable to statements made irrespective of the medium."

Tanick said the ruling could present a slippery slope.

In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from "an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it's “an endorsement that statements of opinion are protected under the First Amendment.”

According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”

Anfinson was also interviewed by Minnesota Lawyer. He said, “Anyone who knew about the case, who observed the oral arguments, and who knows something about libel law is about as unsurprised with this result as they can be. It’s about as perfunctory and routine as the Supreme Court ever gets. It was a completely straightforward application of long-settled libel-law rules.”

Anfinson said the case is more significant for social commentary purposes than for its legal analysis, noting that perhaps the justices only accepted the case to fix an error of the Court of Appeals.

Laurion's attorney, John D. Kelly, said the fact that Laurion's speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. "It's almost as if things were said around the water cooler or perhaps posted in a letter to the editor," he said. "I think the principles they worked with are applicable to statements made irrespective of the medium."

Commenting about this case on his own blog, February 8, 2013, Aaron Kelly, internet law & defamation law attorney, said “Thanks to the First Amendment, free speech is the law of that land, and that means being able to communicate our views publicly – no matter how offensive.”

Mark A Fischer of Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, said on February 11, 2013, “For those who are under criticism, one of the practical consequences of bringing a defamation action is that more publicity for the accused statements is almost an inevitable result, whether the statements are ultimately found libelous or not. In other words, in weighing the pros and cons of initiating a lawsuit, all potential defamation and privacy claim plaintiffs should consider the rule of Hippocrates applicable to physicians, ‘First do no harm.’”

In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I've been tracking doctor v. patient lawsuits for online reviews. . . doctors usually lose or voluntarily drop these lawsuits. Indeed, with surprising frequency, doctors end the lawsuit by writing a check to the defendant for the defendant's attorneys' fees where the state has a robust anti-SLAPP law. Doctors and other healthcare professionals thinking of suing over online reviews, take note: you're likely to lose in court, so legal proceedings should be an absolute last-resort option--and even then, they might not be worth pursuing.”

the financial costs are significant

[quote] It's a frustrating end for McKee, 51, who said he's spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him -- likely from people who never met him. He hasn't ruled out a second lawsuit stemming from those posts.

"The financial costs are significant, but money is money and five years from now I won't notice the money I spent on this," he said. "It's been the harm to my reputation through the repeated publicity and the stress." [end quote]

Five years from now I WILL notice the money I spent on this. Although the Minnesota Supreme Court dismissed David McKee MD v Dennis Laurion, the entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened. It has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents. While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage. Newspaper stories have caused people to call or write me to relate their own medical experiences. I’ve referred them to my lawyers. I’ve also received encouragement from other persons who have been sued over accusations of libel or slander.

I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe "if you stick to the facts." That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.

From the American Health Lawyers Association:
In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

From the Business Insurance Blog:
The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”

From the Duane Morris Media Blog:
The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.

McKee V. Laurion cited as precedent by a Federal Appeals Court

Minnesota defamation case, David McKee MD v Dennis Laurion, cited as precedent by UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT upon Appeal from the United States District Court for the Eastern District of North Carolina.

In deciding an Appeal from the United States District Court for the Eastern District of North Carolina at Wilmington, MYGALLONS LLC and ZENACON LLC STEVEN VERONA v. U. S. BANCORP, VOYAGEUR FLEET SYSTEMS INC, And K. E. AUSTIN CORP (12-1287); The United States Court of Appeals for the Fourth Circuit cited David McKee MD v. Dennis Laurion.

The parties agree that the defamation claim is governed by Minnesota law because the alleged defamation originated in Minnesota. They also agree that under Minnesota law, the elements of a defamation claim are: “(1) the defamatory statement was communicated to someone other than the plaintiff; (2) the statement is false; (3) the statement tends to harm the plaintiff’s reputation and to lower [the plaintiff] in the estimation of the community; and (4) the recipient of the false statement reasonably understands it to refer to a specific individual.” McKee v. Laurion, 825 N.W.2d 725, 729-30 (Minn. 2013) . A defamation claim cannot be based on a true statement. Id. at 730. “True statements” include statements that are “true in substance” and contain only “minor inaccuracies of expression or detail.” Id. In articulating this standard, the Minnesota courts explain that “substantial truth” means that “the substance, the gist, the sting, of the libelous charge [is] justified” and the statement “would have the same effect on the mind of the reader or listener as that which the pleaded truth would have produced.” Id.

Among top three 2013 lawsuits in Minnesota

From Twin Cities Business "The Top Lawsuits Of 2013" by Steve Kaplan December 20, 2013

Never Shout "He's a Tool!" On a Crowded Website?

Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.

Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?

It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”

But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation.“The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”

The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.

We need some boundaries

In spite of Supreme Court disagreement and subsequent peer disagreement, detailed above, Marshall Tanick is STILL saying about David McKee MD v. Dennis Laurion: "The thing that’s often misunderstood is that THIS WAS NOT JUST ABOUT FREE SPEECH, BUT ABOUT MAKING ACTUAL FALSE STATEMENTS. The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries."

This is from an April 4, 2014, Buzzfeed article by Jake Rossen.[Excerpt begins]

David McKee, M.D., a Duluth, Minn., neurologist, was unaware of the Streisand phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.

According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”

Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. He fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events.

In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. A user on Reddit.com posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.”

McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.

McKee was rated for several years as a top provider in Duluth Superior Magazine, but“From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.”[Excerpt ends]

As one of the “trolls” detailed in the article, I have no issue with the accuracy of the text - at least as it pertains to me - but the tone of the title fails to distinguish sincere complaints about bedside manner from attacks on mental stability, attacks on medical prowess, fake websites, allegations of dangerous injections, and use of multiple identities. The author said “McKee and Laurion agree on substance…”

While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income - the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.

I tweeted a link to that article, and Dennis Laurion, whose father was the patient in the Minnesota, case wrote to me. (Laurion's reply to Jake Rossen’s article was also posted earlier on this forum.)

Correspondence of Skeptical Scalpel and Dennis K. Laurion:

[Scalpel] I very much appreciate your email and the clarification of your situation. I hope you realize that I personally took no side in the dispute you had with Dr. McKee.

[Laurion] Thanks, Doctor, for the courtesy of your reply. I do realize that you just tweeted the existence of the article.

[Scalpel] Most of the stories about your case tended to sympathize with the doctor and, his defamation suit brought far more attention to him and his behavior than if he had simply let it go. Is the litigation completely over?

[Laurion] Yes. For a while, the plaintiff threatened in settlement demands, to sue me for 500+ remarks made on Reddit.com. His “proof” was that most of the remarks came from Duluth, and I live in Duluth; he also lives and works in Duluth. He threatened to subpoena IP numbers and sue every poster, presumably all my relatives and friends, if I didn’t settle. I hadn’t posted to Reddit, I don’t know anybody who did, and nobody ever asked my ISP for my IP number or browsing history.

[Scalpel] Did you win the case?

[Laurion] I won dismissal from the Minnesota Supreme Court; he won the right to make me spend $56K I didn’t have. Minnesota allows “hip pocket lawsuits.” The plaintiff served me but didn’t file in court. He almost immediately asked my insurance company for a settlement, apology, and confidentiality agreement. This lawsuit was apparently supposed to last 3 weeks and never be filed in court; however, my insurance company doesn’t offer me defamation coverage, and I filed my reply through the court, putting the suit into public record and the attention of newspapers.

[Scalpel] Do you have any recourse as far as say, counter-suing Dr. McKee?

[Laurion] No. In Minnesota, each party is responsible for their own legal fees. Dr. McKee had to reimburse me about $2000 of filing fees and printing costs. I’d have contemplated a suit for abuse of process, but the Appellate Court’s decision not to dismiss tended to dilute my complaint.

[Scalpel] Are you familiar with strategic lawsuit against public participation lawsuits? If I recall correctly, your case took place in Minnesota which has an anti-SLAPP law.

[Laurion] I wanted my lawyer to file a SLAPP motion, but Minnesota SLAPP law only applies to actions that are wholly or in part government petitions. The plaintiff’ only charged me for my internet rating site reviews and mention of my letter to the Medicare Ombudsman, the County Health Department, or the Minnesota Board of Medical Review; however, my comments to those sources were quoted in briefs and newspaper comments.

COULD DOCTOR STREISAND EXPLAIN IT TO PROFESSOR STREISAND?

A University of Wisconsin-Whitewater professor is suing a former graduate student who posted online comments and videos that the teacher considers defamatory.

Anthony Llewellyn took a class last year from communications professor Sally Vogl-Bauer, but the experience didn't go well.

Llewellyn posted comments on professor-rating sites accusing the teacher of criticizing his academic abilities, grading him unfairly and causing him to fail out of school. He said he spoke with her in April about his concerns, two months before he was told he had failed her class.

Vogl-Bauer contends the comments amount to defamation, while Llewellyn says his goal was simply to inform the public about how the professor treated him.

Tim Edwards, the attorney representing Vogl-Bauer, said the comments could be especially damaging to someone in a small professional community. He said he and Vogl-Bauer agree that students should be allowed to express their opinions, "but when you go so far beyond that, into a concerted effort to attack somebody's reputation because things didn't go your way, that's much different."Edwards and Vogl-Bauer asked Llewellyn to take down his online comments and videos. They filed the lawsuit after he refused.

Llewellyn said it's important for the videos and comments to stay online so the public can remain informed.

It's not clear how successful the lawsuit will be, but a similar case in Minnesota ended with a ruling in favor of the person who posted the online rating. In the case (David McKee MD vs Dennis Laurion), a doctor took offense when a patient's son went on a rate-your-doctor website and called him "a real tool," slang for stupid or foolish. The Minnesota Supreme Court ruled in January 2013 that the comment wasn't defamatory because it was an opinion protected by free-speech rights.___Information from: The Janesville Gazette, http://www.gazetteextra.com

Allowing criticism but suing for defamation

[[ Tim Edwards, the attorney representing Vogl-Bauer, said the comments could be especially damaging to someone in a small professional community. He said he and Vogl-Bauer agree that students should be allowed to express their opinions, "but when you go so far beyond that, into a concerted effort to attack somebody's reputation because things didn't go your way, that's much different." ]]

I was the defendant in a defamation lawsuit, David McKee MD v. Dennis Laurion (Minnesota Supreme Court A11-1154, 2013).

The Duluth News Tribune in June 2010 said this about Marshall H. Tanick ofHellmuth Johnson: Minneapolis attorney Marshall Tanick, in a phone interview,alleged that Laurion defamed his client in several ways, including postingnegative reviews of McKee on various websites. The basis for the lawsuit is thedefamatory statements that were made on websites and to other sources, Tanicksaid. However, by no means does Dr. McKee want to in any way prevent or affectany kind of communications that may be made to the Board of Medical Practice orany other regulatory agencies. The purpose of the lawsuit is to preventdefamation being made on the websites and through other sources.

The real utility of a defamation suit

. . . If a ( plaintiff ) sues, alleging simple business disparagement or perhaps defamation, its goal isnâ€™t necessarily to win, said Marshall Tanick . . . The strategy is to force the other person to incur huge legal expenses that will deter them and others. . . very few cases go all the way to trial. Lawyers will seek ways to avoid First Amendment issues because they are hard to prove.

Could Dr. Streisand explain it to Professor Streisand - and to Teacher Streisand

In addition to Sally Vogl-Bauer in Wisconsin, there is a teacher in Texas suing for defamation.

"Texas teacher sues two students for defamation"Posted By Kristen Butler, UPI, May 13, 2013

[[ May 13 (UPI) -- High school English teacher Elizabeth Ethredge has filed suit against two students claiming she was suspended and may be fired because they told the principal that she had asked her class to stalk a suspected thief on Facebook. Ethredge claims she was giving an "oral storytelling" lesson in November 2012 when she told her class an anecdote about her son having personal property stolen at a high school in another district, reports Courthouse News Service.

[[ The complaint states that Ethredge "mentioned to her students that they might be able to help recover her son's property." She invited any student with a Facebook account to help by messaging the suspected thief to try and purchase the stolen item from him.

[[ Ethredge claims the two students only brought it up months later, in March of this year, when she sent them to the principal's office for disruptive behavior and a dress code violation.

[[ "Defendants wrote statements about the oral storytelling exercise that were clearly retaliatory in nature, designed to take the focus off of their inappropriate behavior and to instead focus the principal's attention on plaintiff," the complaint states.

[[ As further evidence of the students' alleged "deliberate and malicious intent to injure plaintiff's reputation," the complaint shows that one student posted a message to Facebook during school hours that said, "Hey Ethredge, "I threw stones at your house" what you got for me big bada**? Case closed!"

[[ The second student named in the suit commented on the post, saying "Hahahahah [expletive] ain't got [expletive]!"

[[ Days after the cited Facebook posts, the Board of Trustees of the Waller Independent School District proposed termination of Ethredge's employment.

Doctor Sues And Gets A Ham

During David McKee MD V. Dennis Laurion, these remarks were made to the Minnesota Supreme Court:

He may have been upset at how Dr. McKee treated his father. Apparently he was, and heâ€™s entitled to say that. He can say that â€śIâ€™m upset. Doctor McKee did not treat my father well. He was insensitive.â€ť He can make statements like that: â€śHe didnâ€™t spend enough time in my opinion.â€ť He can make factual (sic) statements, he can make them on the Internet, he can make them in letters, he can write a letter to the editor, he can stand in front of St.Lukeâ€™s Hospital with a placard saying those things if they are opinions . . ."

During an after-school special, it will be dubbed:

He can stand at St. Luke's with a placard of rebukes.He can say "I'm upset." He can say it till he's wet.He can write some letters to those he thinks his betters.

He can say it here or there. "I don't like him anywhere."He can say it in a house. "I don't like him with a mouse, I don't like him here or there, I don't like him anywhere."

He can say it in a car. He can say it in a tree. "I don't like him in a box, I don't like him with a fox, I don't like him in a house, I don't like him with a mouse,I don't like him here or there, I don't like him anywhere."

He can say it in on a train. He can say it in the rainHe can say it in the dark. He can say it in the park."I don't like him in on a train, I don't like him in the rain,I don't like him in the park, I don't like him in the rain,I don't like him with a goat, I don't like him on a boat."

He can say it here or there, he can say it anywhere,He can speak till numb, even if some should say,There should be some awful Hell Toupee.

IS A SETTLEMENT IN THE WORKS FOR VOGL-BAUER V. LLEWELLYN?

Anthony Llewellyn now has three lawyers, Andrew Price, Kate E. Maternowski, and Laura Brenner . Jury trial is still scheduled for SEP 15 - SEP 17, 2014, in the Walworth County Judicial Center Courtroom of the Honorable Phillip A Koss; however, it is hard to find any of Anthony Llewellyn's videos online. IS HE TAKING THE VIDEOS DOWN?

Sally Vogl-Bauer apparently had her pre-trial hearing AUG 20, 2014. It is no longer listed on the pending court docket.

"Texas Defamation: A Big Tale Of A Teacher & Two Rebellious High School Studentsâ€¦"

Thursday, February 13th, 2014

English teacher Elizabeth Ethredge, of the Waller Independent School District, filed a Texas defamation lawsuit against two of her students, Demi Alyssa Gray and Dylan Noble Wells. Ethredge insists Gray and Noble twisted tales about classroom events in retaliation for being disciplined. But Gray and Noble insist the teacher acted inappropriately in class.

The month was November; the year, 2012. According to Ethredge, she was giving her students a State-mandated lesson in oral storytelling. The seasoned teacher opted to regale her class with a tale about her son being robbed at another school in the district.

According to two of her students, Gray and Noble, five months after the lesson, Ethredge encouraged students to hone their spy skills, head over to Facebook, and avenge her sonâ€™s honor by trying to purchase goods from the person Ethredge believed robbed her [ son ].

The curious part about this case, though, is that the students waited months to â€śsnitchâ€ť on their teacher. Why? Well, if you believe Ethredgeâ€™s side of the story, they only did it in retaliation for her sending them to the principalâ€™s office over breaking school dress code rules and being disruptive in class.

Soon after the two students ratted on their teacher, the school district suspended Ethredge with pay. Soon after that, administrators seriously considered termination. As a result, she decided to file an Internet defamation case.

Filed at the Harris County Court, Ethredge is asking for punitive damages, citing defamation and intentional infliction of emotional distress. Ethredgeâ€™s claim averred that the studentsâ€™ actions were a â€śdeliberate and malicious intent to injure plaintiffâ€™s reputation.â€ť To temper any speculation about the nature of what happened in her classroom, Ethredgeâ€™s suit explains that the â€śoral storytelling exercise was directly related to and in compliance with the Texas Essential Knowledge and Skills, the State Standards for curriculum in public schools in Texas.â€ť

In order to win this case, Ethredge will most likely have to prove material harm â€“ as you canâ€™t win a defamation lawsuit over hurt feelings. Itâ€™s interesting to note that Texas does not have a false light tort â€“ if it did, Ethredge may have been able to file a stronger case. Thatâ€™s not to say she doesnâ€™t have a chance at winning this one â€“ especially since administrators are talking termination â€” but being able to add a false light charge would put more â€śmeatâ€ť on the proverbial bone.

Re: IS A SETTLEMENT IN THE WORKS FOR VOGL-BAUER V. LLEWELLYN?

Five years from now, I won't remember . . .

In response to a newspaper article about David McKee MD V. Dennis Laurion, Dr. McKee, founder of Northland Neurology and practitioner at St. Luke's Hospital in Duluth, Minnesota, said that money is money, and he wouldn't remember the impact in five years.

I wrote my review of Dr. David McKee five years ago. I can't speak for Dr. McKee, but I still remember the impact.

This entire experience has been distressing to my family. We were initially shocked and blindsided by â€śjocularâ€ť comments made so soon after my fatherâ€™s stroke by somebody who didnâ€™t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened.

David McKee MD V. Dennis Laurion has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they donâ€™t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children donâ€™t often bring it up, because they donâ€™t know how to say anything helpful. I have been demoralized by three years of being called â€śDefendant Laurionâ€ť in public documents.

While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. Iâ€™ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. Thatâ€™s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

What itâ€™s like for a patient or family member to be caught up in a case like McKee V. Laurion was already described by the plaintiffâ€™s lawyer in a Star Tribune newspaper article, â€śCompany sues over info put on Yahoo message board,â€ť August 27, 2001, and repeated in http://chronicle.augusta.com/stories/2001/08/27/bus_321610.shtml . It said in part: â€śIF A COMPANY SUES, alleging simple business disparagement or perhaps defamation, ITS GOAL ISNâ€™T NECESSARILY TO WIN,â€ť SAID MARSHALL TANICK, a First Amendment expert at Mansfield & Tanick in Minneapolis. â€śTHE STRATEGY IS TO FORCE THE OTHER PERSON TO INCUR HUGE LEGAL EXPENSES THAT WILL DETER THEM AND OTHERS from making such statements,â€ť he said â€¦ â€śyet very few (cases) go all the way to trial and verdict,â€ť Tanick said. [ Emphasis added ]

The plaintiffâ€™s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I havenâ€™t wanted to play. The suit cost me the equivalent of two yearâ€™s net income - the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readersâ€™ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldnâ€™t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings â€“ only the news coverage.

It was not my intention to use any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my fatherâ€™s room. The public could decide what to believe and what - if any - impact it had on them: insensitive doctor or overly-sensitive consumer?

Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dadâ€™s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit - for fear of creating the â€śStreisand Effect.â€ť As a retired layman, I brought far less resources to the battle of financial attrition.

The Minnesota Supreme Court compared every statement I attributed to Dr. David McKee against every statement he claimed he really said. The Court concluded the impact of each set of statements was the same. For instance, the Minnesota high court said that Dr. David McKeeâ€™s version of his comment about the intensive care unit was substantially similar to mine.

Iâ€™ve learned that laws about slander and libel do not conform to oneâ€™s expectations. Iâ€™ve read that online complaints are safe â€śif you stick to the facts.â€ť Thatâ€™s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what Iâ€™d heard. I donâ€™t like to read generalities like â€śIâ€™m upset. He did not treat my father well. He was insensitive. He didnâ€™t spend enough time in my opinion.â€ť However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.

During the existence of David McKee MD vs Dennis Laurion, I heard Dr. McKee's lawyer tell the Minnesota Supreme Court how I could have commented without being defamatory. I am upset. I think Doctor McKee did not treat my father well. I think he was insensitive. He did not spend enough time in my opinion.

Jesse Ventura Defamation Lawsuit Cites McKee V. Laurion as precedent

The widow of Chris Kyle, author of "American Sniper", is appealing former Navy SEAL and Minnesota Governor Jesse Ventura's defamation award against Kyle's estate. Her brief to the United States Court of Appeals for the Eighth Circuit cites David McKee MD V. Dennis Laurion as a precedent.In July, Ventura was awarded $1.845 million for claims made by Kyle in American Sniper Ventura says were fabricated and damaging to Ventura's career and reputation.Excerpts from brief:

Appellant Taya Kyle, executor of the estate of Chris Kyle, asks this Court to reverse the judgment awarding Jesse Ventura $500,000 for defamation and $1,345,477.25 for unjust enrichment. Review of the record establishes that Ventura did not prove material falsity or actual malice. The courtâ€™s unjust enrichment award based on allegedly defamatory speech is unprecedented, distorts Minnesota common law, and violates the First Amendment. The judgment, therefore, must be reversed and the case dismissed.

This Court should reverse the defamation judgment because the district court incorrectly instructed the jury about the questions of whether the statements at issue were materially false and published with actual malice. The First Amendment requires an appellate court to examine the record independently and enter judgment for the defendant where, no properly instructed jury could have found defamation liability. See Sullivan, 376 U.S. at 285.

. . .

The district court erred when it instructed the jury it could impose defamation liability based on the entirety of the â€śstoryâ€ť Kyle told about Ventura, rather than explaining that its original instruction required Ventura to prove all of the elements of his defamation claim with respect to at least one of the three specific statements at issue.

A jury instruction is erroneous if it misstates the law. Wolfe v. Fayetteville, Ark. Sch. Dist., 648 F.3d 860, 864 (8th Cir. 2011). To establish a defamation claim, a plaintiff must prove that a specific statement is both defamatory and false. McKee v. Laurion, 825 N.W.2d 725, 729 - 30 (Minn. 2013). In addition, the First Amendment requires a public figureto prove that such a statement was published with actual malice. Gertz v. Robert Welch, Inc., 418 U.S. 323, 327-28 (1974).